Citation NR: 9800030
Decision Date: 01/02/98 Archive Date: 01/13/98
DOCKET NO. 96-21 363 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
heart murmur.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. P. Reardon, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1943 to
January 1946. This matter comes before the Board of
Veterans’ Appeals (Board) on appeal from a March 1996 rating
decision by the Pittsburgh, Pennsylvania RO that denied
service connection for a heart murmur.
Although the RO has developed the issue on appeal as though
it were an original claim for service connection, the Board
finds that this treatment of the veteran’s claim is not
entirely appropriate. The record shows that RO denied his
claim of entitlement to service connection for a heart murmur
by a decision entered in October 1975. Although the veteran
was given written notification of this determination in
November 1975, a timely appeal was not thereafter received.
The rating decision, therefore, became final. See 38 C.F.R.
§ 19.118 (1975). Therefore, the veteran's current claim of
entitlement to service connection for a heart murmur must be
considered a petition to reopen a prior final decision.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1996).
Consequently, the issue on appeal has been restyled as set
forth on the first page of this decision.
REMAND
The veteran contends that the RO erred by failing to grant
service connection for a heart murmur.
As previously noted, the veteran’s current claim of
entitlement to service connection for a heart murmur was
denied by the RO in 1975. Although the veteran was given
written notification of this determination that same month, a
timely appeal was not thereafter received. The rating
decision, therefore, became final. 38 U.S.C.A. § 7105 (West
1991); 38 C.F.R. §§ 3.104 (a), 20.302, 20.1103 (1995).
The claim, however, will be reopened if new and material
evidence has been submitted since the last final decision
denying the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a);
Manio v. Derwinski, 1 Vet.App. 140, 145 (1991); Evans v.
Brown, 9 Vet. App. 273 (1996). The issue of new and material
evidence must be addressed in the first instance by the Board
because it goes to the Board’s jurisdiction to reach the
underlying claim and adjudicate the claim de novo. See
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g
8 Vet.App. 1 (1995). Once the Board finds that no such
evidence has been offered, that is where the analysis must
end, and what the RO may have determined in this regard is
irrelevant. Id. Further analysis, beyond the evaluation of
whether the evidence submitted in the effort to reopen is new
and material, is neither required nor permitted. Id. at
1384. Any finding entered when new and material evidence has
not been submitted “is a legal nullity.” Butler v. Brown,
9 Vet.App. 167, 171 (1996) (applying an identical analysis to
claims previously and finally denied, whether by the Board or
by the RO).
VA regulations require the agency of original jurisdiction
(AOJ) to provide the veteran with a Statement of the Case
(SOC) when he timely notifies the AOJ of his disagreement
with its decision on his claim of entitlement to benefits.
38 C.F.R. § 19.26 (1996). The SOC must contain, inter alia,
“a summary of the applicable laws and regulations, with
appropriate citations, and a discussion of how such laws and
regulations affect the determination . . . .” 38 C.F.R. §
19.29 (1996). Because the SOC issued to the veteran in the
present appeal did not contain a summary of the laws and
regulations pertaining to finality or the standards employed
in determining whether a claim is to be reopened, remand is
also required to ensure him full procedural due process of
law.
Under the circumstances of this case, further development is
required. Accordingly, the case is hereby REMANDED to the RO
for the following action:
The RO should adjudicate the issue of
whether the veteran has submitted new and
material evidence sufficient to reopen a
claim of entitlement to service
connection for a heart murmur. If the
claim is denied, the veteran and his
representative should be provided with an
appropriate supplemental statement of the
case that includes all of the law and
regulations pertaining to finality.
After the veteran and his representative are given an
opportunity to respond to the supplemental statement of the
case, the case should be returned to the Board.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
C. W. SYMANSKI
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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